Kannur University v. Kerala State Information Commission and Muhammed Athif.K.K.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 8[ TH ] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944`** ## **`WP(C) NO. 3243 OF 2023`** ## **`PETITIONER:`** ``` KANNUR UNIVERSITY THAVAKKARA, CIVIL STATION P.O, KANNUR-670002 REPRESENTED BY ITS REGISTRAR, DR. JOBY K JOSE, S/O. JOSEPH, AGED 44 YEARS, RESIDING AT PALLIKUNNU, KANNUR. ``` ``` BY ADV I.V.PRAMOD ``` ## **`RESPONDENTS:`** ``` 1 KERALA STATE INFORMATION COMMISSION REPRESENTED BY ITS REGISTRAR, PUNNEN ROAD, THIRUVANANTHAPURAM, PIN - 695001 2 MUHAMMED ATHIF.K.K KOLAYATHKATTI HOUSE, KANDOTH P.O, KIZHAKKEKOVVAL, PAYYANNUR, KANNUR DISTRICT. BY ADV SHRI.M.AJAY, SC, STATE INFORMATION COMMN ``` ``` SMT MABLE C KURIAN, SR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No. 3243 of 2023 2 ## **“CR”** ## **J U D G M E N T** This writ petition is filed by Kannur University, a University established under the Kannur University Act, 1996, challenging Ext.P7 order issued by the Kerala State Information Commission. By the order impugned, the appeal preferred by the 2nd respondent was allowed by the Commission, and directions were issued to the University to furnish the information sought by the party. 2. The petitioner asserts that the University has issued Ext.P10 order implementing detailed regulations with regard to revaluation/ issue of photocopy/ scrutiny of answer scripts of University examinations. An individual who requires copies of the documents covered under the order is required to file an application by remitting the requisite fee. It is further stated that the Government of Kerala has issued Exhibit P11 Circular directing all departments that only after receiving the fee fixed for the purpose the documents sought shall be issued. It is stated that while issuing Ext.P11 circular, the Government has taken note of Ext.P12 interim order passed by a learned Single Judge of this Court. According to the W.P.(C) No. 3243 of 2023 3 petitioner, if Universities are directed to supply copies of documents sought for by invoking the provisions of the Right to Information Act, they would be unreasonably burdened. On facts, it is stated that the application filed by the 2nd respondent was almost a year after the publishing of the results, and if the University is compelled to furnish the information by receiving a nominal amount, it would result in serious injustice. 3. In response, Sri.M Ajay, the learned counsel appearing for the 1st respondent, submitted that the issue raised by the petitioner in this writ petition has been covered against the petitioner, and reliance is placed on the law laid down by a Division Bench of this Court in **Kerala Public Service Commission v. State Information Commission,** **Kerala, and Others** [2011 (2) KLT 88]. According to the learned counsel, the above judgment has been upheld on almost all grounds by the Hon’ble Supreme Court in **Kerala Public Service Commission and** **Others v. State Information Commission and another** [(2016) 3 SCC 417] except by clarifying that the applicants shall not be entitled to the disclosure of the names of the examiners as sought for by them. The learned counsel would then refer to the observations made by the Apex W.P.(C) No. 3243 of 2023 Court in **Institute of Company Secretaries of India v. Paras Jain** [(2019) 16 SCC 790], and it was argued that the contention of the Institute that owing to the nominal fee fixed under the RTI Act, dissemination of information would become financially burdensome was repelled holding that the guidelines issued by the Institute would not take away the right of the information seeker to seek inspection and certified copies of their answer scripts in terms of Rule 4 of the Right to Information (Regulation of Fee and Cost) Rules, 2005. It is submitted that it is for the candidate to choose either of the rules and if the applicant invokes the provisions of the Right to Information Act, the fee fixed for the purpose can only be demanded. The learned counsel would then refer to the judgment rendered by a Division Bench of this Court in the judgment dated 08.01.2018 in W.A No.2193/2017 (neutral citation No.2018/KER/120), and it is argued that following the law laid down in **KPSC** (supra), the contention advanced by the University of Kerala was rejected. The learned counsel would also rely on the observation made by the learned Single Judge in the judgment dated 25.06.2019 in W.P.(C) No.11202/2019 [ **Binu D.B (Adv.) v. SPIO and Ors** . (Neutral Citation No.2019/KER/38803] and it is submitted that the officers of the W.P.(C) No. 3243 of 2023 5 Government cannot issue orders to influence the various information officers and appellate authorities under the Act and dictate that they shall not make available certain types of information, ignoring the mandate of the RTI Act. Finally, reliance is placed on the judgment rendered by the Apex Court in **State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha** [(2009) 5 SCC 694] and it is argued that interim orders issued by this Court in a pending writ petition cannot be considered to have finally decided the issues/questions raised, nor it would lay down any principles of law and being tentative, no reliance could be placed on it by any authority to stifle the provisions of an enactment brought out by the Parliament. 4. I have heard Sri. I.V. Pramod, the learned counsel appearing for the petitioner and Sri. M. Ajay, the learned standing counsel appearing for the State Information Commission. 5. It appears from the records that the 2nd respondent filed an application on 12.12.2020 requesting the University to furnish the answer booklet of i) Research and Methodology ii) Business Regulatory framework, and iii) Disaster Management in respect of the III Semester Examination held during 2019 October/November. The Information Officer W.P.(C) No. 3243 of 2023 6 refused to furnish the information on the premise that the application filed by the 2nd respondent was not in tune with the orders and regulations issued by the University and for not paying the fixed fee. The 1st respondent interfered with the order and directed the dissemination of the information sought. It was also mentioned in the order that the name of the Examiner need not be disclosed. 6. The contention of the University is that in view of Ext.P11 order issued by the General Administration wing, the University can refuse information on account of the failure of the applicant to apply in terms of the University Order and Regulations. They also contend that if they are ordered to disseminate information after receiving the nominal fee fixed under the RTI Act, it would be financially burdensome. To sustain their stand, they also contend that it is on the strength of the Ext.P12 interim order issued by this Court that the Government has come out with Ext.P11 order. I am afraid that the stand taken by the University cannot be sustained. 7. A perusal of Ext.P11 order would reveal that the State Information Commission had requested the Government to issue directions to furnish information to potential information seekers without W.P.(C) No. 3243 of 2023 7 demanding fees in excess of Rs.5/-. The order states that passing directions as sought may result in the Government sustaining serious loss. It is also stated therein that this Court has issued an interim order in a writ petition filed by the Director of General Education, staying the operation of an order issued by the Commission by which it has been ordered that for information sought under the RTI Act, the levy can only be based on the rules framed thereunder and not otherwise. It appears that the judgment rendered by the Apex Court in the **Institute of Company Secretaries** (supra) was not brought to the notice of the learned Single Judge. The Apex Court in **Barak Upatyaka** (supra) has made it clear that the interim orders cannot be treated to have finally decided the issues/questions of law, nor would it lay down any principles of law. They can only be purely tentative. 8. In **KPSC** (supra), the Division Bench of this Court was confronted with the challenge raised by the Public Service Commission, challenging the decision of the State Information Commission. The stand of the PSC was that the information with the PSC cannot be accessed under the RTI Act and that the answer scripts, marks awarded, including interview and other details touching the process of examination and W.P.(C) No. 3243 of 2023 8 interview cannot be made available except to the extent provisions are made for such access by the regulations and decisions of the PSC. The Division Bench, while dismissing the Writ Petitions, held that the concept of information for purpose of the R.T.I Act cannot be restricted to such information as may fall within the concept of the fundamental right to information as part of the fundamental right to freedom of speech and expression referable to Article 19(1)(a)(iii). It was held that an examinee would be entitled to access information in relation to that person's answer scripts. It was also held that even if P.S.C. has made rules for the issuance of copies and dissemination of information to candidates, the same cannot override provisions of the RTI Act. The Division Bench went on to hold that the information seekers are also entitled to get the disclosure of names of examiners who have evaluated the answer sheets. The matter was taken in appeal, and the Apex Court in **KPSC and Ors.** (supra) refused to interfere with the judgment but went on to clarify the judgment only to the extent of holding that the applicants would not be entitled to the disclosure of names of the examiners as sought by them. 9. In **University of Kerala,** a Division Bench of this Court repelled the contention of the University that the University, having W.P.(C) No. 3243 of 2023 9 framed the regulations prescribing the fee that is payable for obtaining information, the applicants are not entitled to seek information by paying the nominal fee fixed under the RTI Act. The said contention was repelled by the Single Judge, and the view of the Single Judge was upheld by the Division Bench. Reference to paragraphs 3 and 4 of the judgment would be apposite. 3. The contention raised by the counsel for the appellants was that the University has framed the Regulations prescribing the fees that is payable for obtaining information from it and that, therefore, even if the application is made under the Right of Information Act, the applicants are liable to make payment of such fees. According to him, the judgment of this court referred to by the learned Single Judge should be understood as one rendered in the context of the information disclosed by the Public Service Commission in response to a query made under the Right to Information Act. 4. Having considered the submissions made, we confess our inability to accept the said plea. It may be true that the University has framed its Regulations prescribing the fee payable by the applicants for information. However, insofar as the information provided under the Right to Information Act is concerned, the realization of the expenses thereof are regulated by the provisions contained in Section 7 thereof. Such provisions of Section 7 will govern the prescriptions under any other Act as is evident from Section 22 of the Right to Information Act. It was relying on these provisions that this court rendered the judgment in the Kerala Public Service Commission's case (supra). We find that the said judgment has been specifically affirmed by the Apex Court in the judgment in Kerala Public Service Commission and Others v. State Information Commission and Others (2016) 3 SCC 417. W.P.(C) No. 3243 of 2023 10 10. In **Institute of Company Secretaries** (supra), the Institute contended that the guidelines framed by its statutory council would govern the modalities of its day-to-day concerns and effect the smooth functioning of its responsibilities under the Company Secretaries Act, which provides much more than the RTI Act, such as revaluation and re-totaling of answer scripts. It was also contended that the guidelines would not take away from Rule 4 of the RTI Rules. It was also contended that by furnishing the records for a nominal fee fixed under the RTI Act, dissemination of information would be financially burdensome. Repelling the contentions, the Hon’ble Supreme Court observed as under in para 11 and 12 of the judgment. **11.** We are cognizant of the fact that guidelines of the appellant, framed by its statutory council, are to govern the modalities of its day-to-day concerns and to effectuate smooth functioning of its responsibilities under the Company Secretaries Act, 1980. The guidelines of the appellant may provide for much more than what is provided under the Right to Information Act, such as re-evaluation, re-totalling of answer scripts. **12.** Be that as it may, Guideline 3 of the appellant does not take away from Rule 4, the Right to Information (Regulation of Fee and W.P.(C) No. 3243 of 2023 11 Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information Act, then payment has to be sought under the Rules therein, however, if the information is sought under the guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines. 11. The Hon’ble Supreme Court went on to hold that the existence of these two avenues is not mutually exclusive, and it is up to the candidate to choose either of the routes. If a candidate seeks information under the provisions of the Right to Information Act, then payment has to be sought under the Rules therein, however, if the information is sought under the guidelines of the council, then the council would be at liberty to charge the candidates as per its guidelines. Importing the principles to the facts of this case, it would be open to the applicant to seek information either under the orders and Rules framed by the University or under the RTI Act. The information has to be furnished to the applicant based on the avenue he chooses. W.P.(C) No. 3243 of 2023 12 In view of the discussion above, I am of the view that the petitioner has not made out any grounds for interference. This writ petition will stand dismissed. There will be no order as to costs. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P.(C) No. 3243 of 2023 13 ## **`APPENDIX OF WP(C) 3243/2023`** ``` PETITIONER’S EXHIBITS: ``` - `Exhibit-P1 A TRUE COPY OF THE APPLICATION DATED 12/12/2020 SUBMITTED BY THE 2ND RESPONDENT TO THE UNIVERSITY` - `Exhibit-P2 A TRUE COPY OF THE COMMUNICATION DATED 6/1/2021 ISSUED BY THE JOINT REGISTRAR (EXAMINATIONS), KANNUR UNIVERSITY TO THE 2ND RESPONDENT` - `Exhibit-P3 A TRUE COPY OF THE FIRST APPEAL DATED 20/1/2021 PREFERRED BY THE 2ND RESPONDENT BEFORE THE CONTROLLER OF EXAMINATIONS` - `Exhibit-P4 A TRUE COPY OF THE APPELLATE ORDER DATED 8/2/2021 ISSUED BY THE CONTROLLER OF EXAMINATIONS OF UNIVERSITY` - `Exhibit-P5 A TRUE COPY OF THE SECOND APPEAL DATED 17/4/2021 PREFERRED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT` - `Exhibit-P6 A TRUE COPY OF THE REPORT DATED NIL SUBMITTED BY THE CONTROLLER OF EXAMINATIONS TO THE 1ST RESPONDENT` - `Exhibit-P7 A TRUE COPY OF THE ORDER AP NO.1085(6)/2020-21 DATED 13/5/2022 PASSED BY THE 1ST RESPONDENT` - `Exhibit-P8 A TRUE COPY OF THE APPLICATION REQUESTING REVALUATION SCORE SHEET SUBMITTED BY THE 2ND RESPONDENT BEFORE THE UNIVERSITY DATED 6/5/2022` W.P.(C) No. 3243 of 2023 14 ``` Exhibit-P9 A TRUE COPY OF THE REPLY DATED 3/6/2022 ISSUED BY THE DEPUTY REGISTRAR OF EXAMINATIONS/STATE PUBLIC INFORMATION OFFICER ``` ``` Exhibit-P10 A TRUE COPY OF THE UNIVERSITY ORDER NO. ACAD/C2/7101/2009 DATED 20/10/2010 ``` ``` Exhibit-P11 A TRUE COPY OF THE CIRCULAR NO. C.D.N 5/24/21 PUBLIC ADMINISTRATION DEPARTMENT DATED 18/2/2022 Exhibit-P12 A TRUE COPY OF THE ORDER IN W.P(C) NO. 34635/2019 DATED 18/12/2019 OF THIS HON'BLE COURT ```